Shag - there are indeed substantive rights in the constitution - heck, let’s start at the first amendment - the freedom of speech and freedom of religion. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary.
You really have no clue what substantive rights are and where they come from do you...
Substantive rights
come from substantive due process.
The rights you cite are
natural rights, per the Framers. The fall into the area of "life, liberty and property". As far as the Frames were concerned, life and property were pretty self explanatory, but liberty was real vague. Hence the Bill of Rights to clarify what the Framers defined as "liberties" that were natural rights. There was no discussion of "substantive rights", "substantive due process" or anything like that.
As
wikipedia points out: "The idea of substantive due process came in as a way to import natural law norms into the United States Constitution". In other words, it was a tool used to
change the constitution by subverting the constitutionally mandated Amendment process. The liberties the Framers viewed as natural were specifically written out in the Bill of Rights and they created a process to amend the constitution and add rights as society felt necessary.
The idea of substantive rights comes from substantive due process and unconstitutionally injects rights into the constitution that are not a part of the constitution in any way.
Those rights you cite may fall under substantive rights, but that doesn't make other rights that are called substantive constitutionally based. The rights you cited were not originally considered "substantive" (there was no such thing as substantive rights in the creation of the constitution). Judges made up the idea of substantive due process and drew from that whatever rights they want. Effectively, subsantive rights is a tool to redefine rights as broadly as they want and claim that they are in the constitution. Being broad enough to include the natural rights explicitly stated in the Bill of Rights also gives those made up rights an added air of constitutional support; but is is only superficial and false. It is based on fallacious logic; namely
suppressed correlative: "a type of argument which tries to redefine a correlative (two mutually exclusive options) so that one alternative encompasses the other".
But Shag, the court uses previous cases all the time to judge current cases - the results are never irrelevant. It is how law is argued, by precedent.
You are missing the point I was raising. It was a response this quote by you: "So, without due process, the Connecticut law would have been upheld, and contraceptives would be illegal for married couples."
I didn't make it clear I guess. Supreme Court cases are not judged by their outcome. Weather or not the ruling in the Connecticut case upheld the use of contraceptives for married couples is irrelevant to weather the ruling was proper or not. What matters is the reasoning behind it. If there is no texual basis for it, then it is beyond the scope of the SCOTUS.
And if you are stuck with historical precedent, I already addressed that point. Throughout the 1800s abortions were easy to get, and fairly common. It has only been since the late 1800s (abortion was pretty much illegal throughout the US by the very early 1900s) that abortion became illegal. It basically marched with the idea in the country that it would be a good thing to place laws concerning morals and values. In fact, during the framing of the constitution, there were almost no laws regarding abortion, and US law at that point followed British law which held abortion to be legally acceptable if occurring before quickening (perceived movement in the womb).
I would question your version of history here. I want proof that abortions were "fairly common" and "easy to get". This sounds like historical revisionism to me...
In fact, the societal trend was in favor of restricting abortion, which is why feminists and liberals went to the courts to stop that trend.
And if SCOTUS has nothing to guide its decisions on abortion it also has nothing to guide its decisions regarding granting rights to 'potential' life. You stated that there is constitutional textual basis there - where? Where in the constitution does it state that 'potential life' has any rights?
Actually, it does. Life is expicitly protected, as I have pointed out, in both the 5th and 14 amendments. The constitution vest in the government an interest and obligation in protecting life. There is no broad "right to privacy" in the constitution. Therefore, any claim that a state law is unconstitutional due to violating a "right to privacy" (as in the case of Roe v. Wade) should be rejected. To do anything else is to reject the rule of law in favor of the judges' personal agenda; judicial activism totalitarianism. The state has a definite interest in protecting life, hence the rules limiting or doing away with abortion. As long at that doesn't conflict with any other constitutional right (and it doesn't) it is beyond the scope of the SCOTUS.
Until life is defined, the mother has every right in the constitution, and the fetus has none.
Actually, by most any objective standard, a fetus is a life. All the talk about weather it is or isn't a life if it is not viable is specious and disengenuous. If a fetus is not a life until it is viable, or removed from the womb, or whatever, then any parasite would not qualify as life. However, under any scientific definition, a parasite does qualify as life.
As far as history is concerned, society has viewed a fetus as a life for most of history, until around the time of Roe v. Wade. That idea came from the feminist movement to justify abortion by dishonestly and fallaciously discrediting the best argument against it. It is an attempt to redefine life to exclude a fetus; a fallacious
denying the correlative argument (an attempt made at introducing alternatives where there are none).
You are correct that the mother has every right in the constitution,
but she does not have rights that are not in the constiution. The whole ruling in Roe v. Wade (and the whole justification for abortion on demand) is based on claiming a right that is
not in the constitution.
Supreme Court Justice Antonin Scalia "Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing.".
Interesting that you take Scalia out of context, but give the link. Here is the full quote:
My Constitution is a very flexible Constitution. You think the death penalty is a good idea — persuade your fellow citizens and adopt it. You think it’s a bad idea — persuade them the other way and eliminate it. You want a right to abortion — create it the way most rights are created in a democratic society, persuade your fellow citizens it’s a good idea and enact it. You want the opposite — persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what a constitution is designed to produce — rigidity. Abortion, for example, is offstage, it is off the democratic stage, it is no use debating it, it is unconstitutional. I mean prohibiting it is unconstitutional; I mean it’s no use debating it anymore — now and forever, coast to coast, I guess until we amend the Constitution, which is a difficult thing. So, for whatever reason you might like the Living Constitution, don’t like it because it provides flexibility.
He's making a bigger point about the flexibility of his view of the constitution as opposed to the view of a "living constitution" based on substantive due process.
The "right to an abortion" came about through the courts under a "living constitution" interpretation. It is now off the table to debate and make laws on.
Under Scalia's view, the SCOTUS has no business ruling on abortion in any way. Since the constitution doesn't talk about it, it is an issue constitutionally left to the states. They should be able to decide it as they see fit. Instead, due to the rigidity inherent in the "living constitution" view, it is unable to be determined by the people. The only way that anything could be done is to amend the federal constitution (which is next to impossible). The democrats in congress also won't allow any amendment process to go through on this issue.
Besides, it would ultimately be irrelevant, because, under the "living constitution" philosophy, it could be effectively ignored (through spin through the "substantive due process clause") by the judges.
The living constitution approach destroys the rule of law and gives unelected judges totalitarian power. That was Scalia's point.
If you read the whole of his speech, that is rather clear. It is also consistent with his rulings and opinions as well as his overall judicial philosophy.
You are better off with an amendment defining life then one that defines moral views and values. If you go with that, morals and values - you are heading into freedom of religion...
I never said anything about an amendment defining moral views and values. You are mischaracterizing me. But, it should be noted that
every law is ultimately defined by morals and values and is an imposition of those morals and values.
That would be especially the case with any amendment that defines life. When life begins will be determined by each voter individually by their own morals and values. The resulting amendment, in defining life, would be a reflection of society's morals and values.
Society's values and morals have everything to do with any and every law. Every law is an imposed societal moral.
I will leave you with more Scalia brilliance on substantive due process from that link of yours (keep in mind, it is a transcript of a speech):
let me first tell you how we got to the “Living Constitution.” You don’t have to be a lawyer to understand it. The road is not that complicated. Initially, the Court began giving terms in the text of the Constitution a meaning they didn’t have when they were adopted. For example, the First Amendment, which forbids Congress to abridge the freedom of speech. What does the freedom of speech mean? Well, it clearly did not mean that Congress or government could not impose any restrictions upon speech. Libel laws, for example, were clearly constitutional. Nobody thought the First Amendment was carte blanche to libel someone. But in the famous case of New York Times v. Sullivan, the Supreme Court said, “But the First Amendment does prevent you from suing for libel if you are a public figure and if the libel was not malicious” — that is, the person, a member of the press or otherwise, thought that what the person said was true. Well, that had never been the law. I mean, it might be a good law. And some states could amend their libel law.
It’s one thing for a state to amend it’s libel law and say, “We think that public figures shouldn’t be able to sue.” That’s fine. But the courts have said that the First Amendment, which never meant this before, now means that if you are a public figure, that you can’t sue for libel unless it’s intentional, malicious. So that’s one way to do it.
Another example is the Constitution guarantees the right to be represented by counsel. That never meant the state had to pay for your counsel. But you can reinterpret it to mean that.
That was step one. Step two, I mean, that will only get you so far. There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.
What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.
Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.
Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process...